Rehnquist served as chief justice for nearly 19 years, making him the fourth-longest-serving chief justice after John Marshall, Roger Taney, and Melville Fuller, and the longest-serving chief justice who had previously served as an associate justice. The last 11 years of Rehnquist's term as chief justice (1994–2005) marked the second-longest tenure of a single unchanging roster of the Supreme Court, exceeded only between February 1812 and September 1823. He is the eighth-longest-serving justice in Supreme Court history.

Early life

Rehnquist was born William Donald Rehnquist[3] in Milwaukee, Wisconsin, on October 1, 1924. He grew up in the suburb of Shorewood. His father, William Benjamin Rehnquist, was a sales manager at various times for printing equipment, paper, and medical supplies and devices; his mother, Margery Peck Rehnquist—the daughter of a local hardware store owner who also served as an officer and director of a small insurance company—was a local civic activist, as well as translator and homemaker.[4] Rehnquist changed his middle name to Hubbs, a family name, because a numerologist told his mother he would be successful with a middle initial of H.[5] His paternal grandparents immigrated from Sweden.[6][7]

Law clerk at the Supreme Court

Rehnquist went to Washington, D.C., to work as a law clerk for Justice Robert H. Jackson during the court's 1952–1953 term.[11] There, he wrote a memorandum arguing against federal court-ordered school desegregation while the court was considering the landmark case of Brown v. Board of Education, which was later decided in 1954. Rehnquist's 1952 memo, entitled "A Random Thought on the Segregation Cases", defended the "separate-but-equal" doctrine. In that memo, Rehnquist said:

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by "liberal" colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed. To the argument that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.[12]

In both his 1971 Senate confirmation hearing for associate justice and his 1986 hearing for chief justice, Rehnquist testified that the memorandum reflected the views of Justice Jackson rather than his own views. Rehnquist said, "I believe that the memorandum was prepared by me as a statement of Justice Jackson's tentative views for his own use."[13] Elsie Douglas, long-time secretary and confidante of Justice Jackson, stated during Rehnquist's 1986 hearings that his allegation was "a smear of a great man, for whom I served as secretary for many years. Justice Jackson did not ask law clerks to express his views. He expressed his own and they expressed theirs. That is what happened in this instance."[14]

However, the papers of Justices Douglas and Frankfurter indicate that Justice Jackson voted for Brown in 1954 only after changing his mind.[15]

At his 1986 hearings for chief justice, Rehnquist tried to put further distance between himself and the 1952 memo: "The bald statement that 'Plessy was right and should be reaffirmed,' was not an accurate reflection of my own views at the time."[16] However, Rehnquist acknowledged defending Plessy in arguments with fellow law clerks.[17]

Several commentators have concluded that the memo reflected Rehnquist's own views rather than those of Justice Jackson.[18][19] A biography on Jackson corroborates this explanation, stating that Jackson instructed his clerks to express their own views, not his.[20] This conclusion is further corroborated by an article published in The Boston College Law Review in 2012, which analyzes a 1955 letter written to Justice Frankfurter that criticized Justice Jackson.[21]

In any event, while later serving on the Supreme Court, Rehnquist made no effort to reverse or undermine the Brown decision, and frequently relied upon it as precedent.[22][23] Rehnquist stated in 1985 that there was a "perfectly reasonable" argument against Brown v. Board and in favor of Plessy, even though he now saw the Court's decision in Brown as correct.[20]

In a memorandum to Justice Jackson about Terry v. Adams,[24] which involved the right of blacks to vote in an allegedly private Texas election, Rehnquist wrote:

The Constitution does not prevent the majority from banding together, nor does it attaint success in the effort. It is about time the Court faced the fact that the white people of the south do not like the colored people. The constitution restrains them from effecting this dislike through state action, but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head.[8]

In another memorandum to Justice Jackson regarding the same case (Terry), Rehnquist wrote:

Clerks began screaming as soon as they saw this that 'Now we can show those damn southerners, etc.' I take a dim view of this pathological search for discrimination and as a result I now have something of a mental block against the case.[25]

Nevertheless, Rehnquist recommended to Justice Jackson that the Supreme Court should agree to hear the Terry case.

Private practice

Rehnquist moved to Phoenix, Arizona, where he was in private law practice from 1953 to 1969. He began his legal work in the firm of Denison Kitchel, subsequently the national campaign manager of the Barry M. Goldwater presidential campaign in 1964. During these years, Rehnquist was active in the Republican Party and served as a legal advisor under Kitchel to Goldwater's campaign.[26] He collaborated with Harry Jaffa on Goldwater's speeches.[27]

Many years later, during the 1971 hearing for associate justice and later during the 1986 Senate hearings on his chief justice nomination, several people came forward to complain about Rehnquist's participation in Operation Eagle Eye, a Republican attempt to discourage minority voters in Arizona elections, when Rehnquist served as a poll watcher in the early 1960s.[28] Rehnquist denied the charges, and Vincent Maggiore, then chairman of the Phoenix-area Democratic Party, said he had never heard any negative reports about Rehnquist's Election Day activities. "All of these things," he said, "would have come through me."[29]

Because he was well-placed in the Justice Department, Rehnquist was mentioned for many years as a possibility for the source known as Deep Throat during the Watergate scandal.[32] Once Bob Woodward revealed on May 31, 2005, that W. Mark Felt was Deep Throat, this speculation ended. It was William Rehnquist who determined that Government National Mortgage Association guarantees constituted a full faith and credit promise of the United States.[33]

Associate Justice

Rehnquist portrait as an Associate Justice in 1972

Nixon nominated Rehnquist to replace John Marshall Harlan II on the Supreme Court upon Harlan's retirement, and after being confirmed by the Senate by a 68–26 vote on December 10, 1971, Rehnquist took his seat as an associate justice on January 7, 1972.[35] There were two vacancies on the court at the time; Nixon nominated Lewis Franklin Powell, Jr. to fill the other, left by the retirement of Hugo Black. Black died September 25, 1971, and Harlan died on December 29 of that year.

On the Burger Court, Rehnquist promptly established himself as the most conservative of Nixon's appointees, taking a narrow view of the Fourteenth Amendment and a broad view of state power. Rehnquist almost always voted "with the prosecution in criminal cases, with business in antitrust cases, with employers in labor cases, and with the government in speech cases."[36] Although Rehnquist was often a lone dissenter in cases early on, his views would later often become the majority view of the Court.[9]

Professor David Shapiro of Harvard Law School suggested that Rehnquist's votes were guided by three basic propositions:[37]

Conflicts between an individual and the government should, whenever possible, be resolved against the individual (this also holds for conflicts between an individual and an employer, including civil rights litigation).

Conflicts between state and federal authority should, whenever possible, be resolved in favor of the states.

Questions of the exercise of federal jurisdiction should, whenever possible, be resolved against such exercise.

Federalism

For years, Rehnquist was determined to keep cases involving individual rights in state courts away from federal reach.[36][38]

In 1977s National League of Cities v. Usery, Rehnquist's majority opinion invalidated a federal law extending minimum wage and maximum hours provisions to state and local government employees.[39] Rehnquist wrote that "this exercise of congressional authority does not comport with the federal system of government embodied in the Constitution."[39]

Equal protection, civil rights, and abortion

Rehnquist rejected a broad view of the Fourteenth Amendment. In 1952, while serving as a clerk to Supreme Court Justice Robert Jackson, Rehnquist wrote a memorandum which concludes that "Plessy v. Ferguson was right and should be re-affirmed. If the Fourteenth Amendment did not enact Spencer's Social Statics, it just as surely did not enact Myrddahl's American Dilemna [sic]" (An American Dilemma), by which he meant that the Court should not "read its own sociological views into the Constitution."[42] He believed that the Fourteenth Amendment was meant only as a solution to the problems of slavery, and was misapplied when applied towards abortion rights or prisoner's rights.[36][43] Rehnquist believed that the Court "had no business reflecting society's changing and expanding values" and argued that this was the domain of the Congress.[36] Rehnquist tried to weave his view of the amendment into his opinion for Fitzpatrick v. Bitzer, but it was rejected by the other justices.[43] Rehnquist later extended what he said he saw as the scope of the amendment, writing in Trimble v. Gordon: "except in the area of the law in which the Framers obviously meant it to apply—classifications based on race or on national origin".[44]

Also, during the Burger Court's deliberations over Roe v. Wade, Rehnquist promoted his view that court's jurisdiction does not apply over abortion.[45]

He voted against the expansion of school desegregation plans and the establishment of legalized abortions, dissenting in Roe v. Wade, 410 U.S.113 (1973). Rehnquist expressed his views about the Equal Protection Clause in cases like Trimble v. Gordon:[44]

Unfortunately, more than a century of decisions under this Clause of the Fourteenth Amendment have produced .... a syndrome wherein this Court seems to regard the Equal Protection Clause as a cat-o'-nine-tails to be kept in the judicial closet as a threat to legislatures which may, in the view of the judiciary, get out of hand and pass "arbitrary", "illogical", or "unreasonable" laws. Except in the area of the law in which the Framers obviously meant it to apply—classifications based on race or on national origin, the first cousin of race—the Court's decisions can fairly be described as an endless tinkering with legislative judgments, a series of conclusions unsupported by any central guiding principle.

Other issues

Rehnquist held a restrictive view of criminals' and prisoners' rights, and held the view that capital punishment is constitutionally permissible.[46] He supported the view that the Fourth Amendment permitted a warrantless search incident to a valid arrest.[47]

In Nixon v. Administrator of General Services (1977), Rehnquist dissented from a decision upholding the constitutionality of an act that gave a federal agency administrator certain authority over former President Nixon's presidential papers and tape recordings.[48] He dissented solely on the ground that the law was "a clear violation of the constitutional principle of separation of powers".[39][48]

During oral argument in Duren v. Missouri (1978), the court faced a challenge to laws and practices that made jury duty voluntary for women in that state. At the end of Ruth Ginsburg's oral presentation Rehnquist asked her, "You will not settle for putting Susan B. Anthony on the new dollar, then?"[49]

Rehnquist's view of the rational basis test

David Shapiro, professor of law at Harvard University, wrote that while Rehnquist was an associate justice, he disliked even minimal inquiries into legislative objectives except in the areas of race, national origin, and infringement of specific constitutional guarantees.[50] For Rehnquist, the rational basis test, which is an important part of equal protection jurisprudence, was not a standard for weighing the interests of the government against the individual; rather, it was a label to describe a preordained result.[50] Shapiro in 1978 pointed out that Rehnquist had avoided joining rational basis determinations for years, except in one case, Weinberger v. Wiesenfeld.[50] Rehnquist eschewed the Court majority's approach to equal protection, writing in dissent in Trimble v. Gordon that the state's distinction should be sustained because it was not "mindless and patently irrational".[50] (The court struck down an Illinois law allowing illegitimate children to inherit by intestate succession only from their mothers.)

Shapiro pointed out that Rehnquist seemed content to find a sufficient relationship between a challenged classification and perceived governmental interests "no matter how tenuous or speculative that relationship might be".[50][51]

A practical result of Rehnquist's view of rational basis can be seen in Cleveland Board of Education v. LaFleur, wherein the Court's majority struck down a school board rule that required every pregnant teacher to take unpaid maternity leave beginning five months before the expected birth of her child.[51] Justice Powell wrote an opinion rested on the ground that the school board rule was too overinclusive to survive equal protection analysis.[51] In dissent, Rehnquist attacked Powell's opinion, saying:

If legislative bodies are to be permitted to draw a line anywhere short of the delivery room, I can find no judicial standard of measurement which says the ones drawn here were invalid.[51]

Shapiro writes that Rehnquist's opinion implied:

That there is no constitutionally significant difference between a classification that encompasses virtually no one outside the scope of its purpose and a classification so overinclusive that the vast majority of those falling within are beyond its intended scope.[51]

Rehnquist's dissent in United States Department of Agriculture v. Murry illuminates his view that a classification should pass muster under the rational basis test so long as that classification is not entirely counter-productive with respect to the purposes of the legislation in which it is contained.[52] Shapiro alleges that Rehnquist's stance "makes rational basis a virtual nullity".[51]

Relations on the Court

Rehnquist built warm personal relations with his colleagues, even with ideological opposites. Justice William Brennan, Jr. "startled one acquaintance by informing him that 'Bill Rehnquist is my best friend up here.'"[53] Rehnquist and Justice William O. Douglas bonded over a shared iconoclasm and love of the west.[54]The Brethren claims that the court's "liberals found it hard not to like the good-natured, thoughtful Rehnquist", despite finding his legal philosophy "extreme",[55] and that Justice Stewart regarded Rehnquist as "excellent" and "a "team player, a part of the group in the center of the court, even though he usually ended up in the conservative bloc".[56]

Since Rehnquist's first years on the Supreme Court, other justices criticized what they saw as his "willingness to cut corners to reach a conservative result", "gloss[ing] over inconsistencies of logic or fact" or distinguishing indistinct cases to reach their destination.[57][58] In Jefferson v. Hackney, for example, Douglas and Justice Thurgood Marshall charged that Rehnquist's opinion "misrepresented the legislative history"[59] of a federal welfare program.[60] Rehnquist did not correct what The Brethren characterizes as an "outright misstatement, ... [and thus] publish[ed] an opinion that twisted the facts".[59] Rehnquist's "misuse" of precedents in another case "shocked" Justice John Paul Stevens.[61] For his part, Rehnquist was often "contemptuous of Brennan's opinions", seeing them as "bending the facts or law to suit his purposes".[62]

Reluctant to compromise, Rehnquist was the most frequent sole dissenter during the Burger years, garnering the nickname "the Lone Ranger".[20] He usually voted with Chief Justice Burger,[63] and – recognizing "the importance of his relationship with Burger" – often went along to get along, joining Burger's majority opinions even when he disagreed with them, and, in important cases, "tr[ying] to straighten him out".[62]

When Chief Justice Warren Burger retired in 1986, President Ronald Reagan nominated Rehnquist to fill the position. Although Rehnquist was to the right of Burger,[64] "his colleagues were unanimously pleased and supportive", even his "ideological opposites".[53] The nomination "was met with 'genuine enthusiasm on the part of not only his colleagues on the Court but others who served the Court in a staff capacity and some of the relatively lowly paid individuals at the Court. There was almost a unanimous feeling of joy.'"[53] Justice Thurgood Marshall would later call him "a great chief justice".[23]

During confirmation hearings, Senator Edward Kennedy challenged Rehnquist on his unwitting ownership of property that had a restrictive covenant against sale to Jews[65] (such covenants were held to be unenforceable under the 1948 Supreme Court case Shelley v. Kraemer). Despite this and other controversies, including a concern over his membership in the Alfalfa Club (which at the time did not allow women to join[66]), the Senate confirmed his appointment by a 65–33 vote, and he assumed the office on September 26. Rehnquist's seat as an associate justice was filled by newly appointed Antonin Scalia.

Leadership of the Court

Rehnquist's predecessor as chief justice, Warren Burger, had floundered as a leader, alienating his colleagues with his overbearing manner, his inability to effectively manage the justices' conference sessions, and abuse of his seniority—in particular, his tendency to change his vote on important cases so that he could maintain control over opinion assignments.[67] Rehnquist, in sharp contrast, won over his fellow justices with his easygoing, humorous, and unpretentious personality. He also tightened up the justices' conferences, keeping the justices from going too long or off track and not allowing any justice to speak twice before all had spoken once, and gained a reputation for scrupulous fairness in assigning opinions: Rehnquist assigned no Justice (including himself) two opinions before everyone had been assigned one, and made no attempts to interfere with assignments for cases in which he was in the minority. Most significantly, Rehnquist successfully lobbied Congress in 1988 to give the Court control of its own docket, cutting back on mandatory appeals and certiorari grants in general.[68]

Rehnquist added four yellow stripes to the sleeves of his robe in 1995. He was a lifelong fan of Gilbert and Sullivan operas, and after appreciating the Lord Chancellor's costume in a community theater production of Iolanthe he thereafter appeared in court with the same striped sleeves. (The Lord Chancellor was traditionally the senior member of the British judiciary.)[69] His successor, Chief Justice John Roberts, chose not to continue the practice.[70]

Federalism doctrine

Rehnquist was expected by scholars to push the Supreme Court in a more conservative direction during his tenure. One area many commentators expected to see changes was in limiting the power of the federal government and in increasing the power of state governments.[71] However, legal reporter Jan Crawford says some of Rehnquist's victories toward the federalist goal of scaling back congressional power over the states had little practical impact.[72]

Rehnquist voted with the majority in City of Boerne v. Flores (1997) and would later refer to that decision as precedent for requiring Congress to defer to the Court as regards interpretation of the Fourteenth Amendment (including the Equal Protection Clause) in a number of cases. Boerne held that any statute that Congress enacted to enforce the provisions of the Fourteenth Amendment (including the Equal Protection Clause) had to show "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end". The Rehnquist Court's congruence and proportionality theory replaced the "ratchet" theory that had arguably been advanced in Katzenbach v. Morgan (1966).[73] According to the "ratchet" theory, Congress could "ratchet up" civil rights beyond what the Court had recognized, but Congress could not "ratchet down" judicially recognized rights. According to the majority opinion of Justice Anthony Kennedy, which Rehnquist joined in Boerne:

There is language in our opinion in Katzenbach v. Morgan, 384 U.S. 641 (1966), which could be interpreted as acknowledging a power in Congress to enact legislation that expands the rights contained in §1 of the Fourteenth Amendment. This is not a necessary interpretation, however, or even the best one.... If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be "superior paramount law, unchangeable by ordinary means".

The Rehnquist Court's congruence and proportionality standard made it easier to revive older precedents preventing Congress from going too far[74] in enforcing equal protection of the laws.[75]

One of the Rehnquist Court's major developments involved reinforcing and extending the doctrine of sovereign immunity,[76] which limits the ability of Congress to subject non-consenting states to lawsuits by individual citizens seeking money damages.

Though the Eleventh Amendment by its terms applies only to suits against a state by citizens of another state, the Rehnquist Court often extended this principle to suits by citizens against their own states. One such case was Alden v. Maine (1999), in which the Court explained that the authority to subject states to private suits does not follow from any of the express enumerated powers in Article One of the Constitution, and therefore the Alden Court looked to the Necessary and Proper Clause to see if that Clause authorized Congress to subject the states to lawsuits by the state's own citizens. Rehnquist agreed with Justice Kennedy's statement that such lawsuits were not "necessary and proper":

Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers.

However, the Court acknowledged that various amendments to the Constitution were intended to give Congress power to abrogate sovereign immunity, one of those amendments being the Fourteenth, and thus Congress may authorize suits for money damages pursuant to (for example) its power to enforce the Fourteenth Amendment, which includes the Equal Protection Clause.[citation needed]

Rehnquist also led the Court toward a more limited view of Congressional power under the Commerce Clause of the U.S. Constitution. For example, he wrote for a 5-to-4 majority in United States v. Lopez, 514 U.S.549 (1995), striking down a federal law as exceeding congressional power under the Clause.

Lopez was followed by United States v. Morrison, 529 U.S.598 (2000), in which Rehnquist wrote the Court's opinion striking down the civil damages portion of the Violence Against Women Act of 1994 as regulating conduct that does not have a significant direct effect on interstate commerce. Rehnquist's majority opinion in Morrison also rejected an Equal Protection argument on behalf of the Act. All four dissenters disagreed with the Court's interpretation of the Commerce Clause, and two dissenters (Stevens and Stephen Breyer) also took issue with the Court's Equal Protection analysis. Regarding the Commerce Clause, Justice David Souter asserted that the Court was improperly seeking to convert the judiciary into a "shield against the commerce power".

Regarding the Equal Protection Clause, Rehnquist's majority opinion in Morrison cited precedents limiting the Clause's scope, such as United States v. Cruikshank (1876), which held that the Fourteenth Amendment applied only to state actions, not private acts of violence. Dissenting Justice Breyer, joined by Justice Stevens, agreed with the majority that it "is certainly so" that Congress may not "use the Fourteenth Amendment as a source of power to remedy the conduct of private persons". However, Breyer and Stevens took issue with another aspect of the Morrison Court's Equal Protection analysis: they argued that cases that the majority had cited (including United States v. Harris and the Civil Rights Cases regarding lynching and segregation respectively) did not consider "this kind of claim" in which state actors "failed to provide adequate (or any) state remedies". In response, the Morrison majority asserted that the Violence Against Women Act was "directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias".

The federalist trend set by Lopez and Morrison was seemingly halted by Gonzales v. Raich (2005), in which the court broadly interpreted the Commerce Clause to allow Congress to prohibit the intrastate cultivation of medicinalcannabis. Rehnquist, along with O'Connor and Thomas, dissented in Raich.

Rehnquist authored the majority opinion in South Dakota v. Dole (1987), upholding Congress's reduction of funds to states not complying with the national 21-year-old drinking age. Rehnquist's broad reading of Congress's spending power was also seen as a major limitation on the Rehnquist Court's push towards redistribution of power from the federal government to the states.

Stare decisis

Some commentators expected the Rehnquist Court to overrule several controversial decisions broadly interpreting the Bill of Rights.[20] The Rehnquist Court, however, expressly declined to overrule Miranda v. Arizona in its decision in Dickerson v. United States. Rehnquist believed that federal judges should not impose their personal views on the law or stray beyond the intent of the framers by reading broad meaning into the Constitution; he saw himself as an "apostle of judicial restraint".[20] TIME Magazine suggested, however, that Rehnquist violated this belief by overruling many cases, particularly from the Warren Court era.[20]Columbia Law School Professor Vincent Blasi said of Rehnquist in 1986 that "[n]obody since the 1930s has been so niggardly in interpreting the Bill of Rights, so blatant in simply ignoring years and years of precedent."[20] (In the same article, Rehnquist was quoted as retorting that "such attacks come from liberal academics and that 'on occasion, they write somewhat disingenuously about me'.")

Rehnquist was a foe of the Court's 1973 Roe v. Wade decision. In 1992, that decision survived by a 5–4 vote, in Planned Parenthood v. Casey, which relied heavily on the doctrine of stare decisis. Dissenting in Casey, Rehnquist criticized the Court's "newly minted variation on stare decisis", and asserted his belief "that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases".[77]

Rehnquist was not reluctant to apply stare decisis in the fashion he believed appropriate. For example, in Dickerson v. United States (2000), Rehnquist voted to reaffirm the Court's famous decision in Miranda v. Arizona (1966) based not only on the notion of adhering to precedent but also on his belief that "the totality-of-the-circumstances test ... is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner." Shortly after Dickerson was decided, the Court dealt with another abortion case, this time dealing with partial birth abortion in Stenberg v. Carhart (2000). Again, a 5–4 decision, and again a dissent from Rehnquist urged that stare decisis should not be the sole consideration: "I did not join the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), and continue to believe that case is wrongly decided."

Gay rights

Among the many closely watched decisions during Rehnquist's tenure was Romer v. Evans (1996). Colorado had adopted an amendment to the state constitution ("Amendment 2") that the Court majority said would have prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to protect homosexual citizens from discrimination on the basis of their sexual orientation. Rehnquist joined the dissent, which argued that the Constitution of the United States says nothing about this subject, so "it is left to be resolved by normal democratic means". The dissent, written by Justice Scalia, argued as follows (some punctuation omitted):

General laws and policies that prohibit arbitrary discrimination would continue to prohibit discrimination on the basis of homosexual conduct as well. This ... lays to rest such horribles, raised in the course of oral argument, as the prospect that assaults upon homosexuals could not be prosecuted. The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit.

The dissent mentioned the Court's then-existing precedent in Bowers v. Hardwick (1986), that "the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years—making homosexual conduct a crime." By analogy, the Romer dissent reasoned that:

If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self avowed tendency or desire to engage in the conduct.

The dissent listed murder, polygamy, and cruelty to animals as behaviors that the federal Constitution allows states to be very hostile toward, and in contrast the dissent stated: "the degree of hostility reflected by Amendment 2 is the smallest conceivable." The Romer dissent added:

I would not myself indulge in ... official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war. But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes.

With the case of Lawrence v. Texas in 2003, the Supreme Court under Rehnquist went on to overrule Bowers. Rehnquist again dissented along with Scalia and Clarence Thomas. The Court's result in Romer had described the struck-down statute as "a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests".[78] The sentiment behind that statute had led to the court evaluating it with a "more searching" form of review.[79] Similarly, in Lawrence, "moral disapproval" was found to be an unconstitutional basis for condemning a group of people.[79] The Court protected homosexual behavior in the name of liberty and autonomy.[79]

Rehnquist sometimes reached results favorable to homosexuals, for example voting to allow a gay CIA employee to sue on the basis of constitutional law for improper personnel practices (although barring suit on the basis of administrative law in deference to a claim of national security reasons),[80] voting to allow same-sex sexual harassment claims to be adjudicated,[81] and voting to allow the University of Wisconsin–Madison to require students to pay a mandatory fee that subsidized gay groups along with all other student organizations.[82]

Civil Rights Act

Rehnquist voted with the majority in denying a private right to sue for discrimination based on race or national origin involving a disparate impact under title VI of the Civil Rights Act of 1964, in Alexander v. Sandoval (2001), which involved the issue of whether a citizen could sue a state for not providing driver's license exams in languages other than English. Sandoval cited Cannon v. University of Chicago (1979) as a precedent. The Court voted 5–4 that various facts (regarding disparate impact) mentioned in a footnote of Cannon were not part of the holding of Cannon. The majority also viewed it as significant that §602 of Title VI did not repeat the rights-creating language (race, color, or national origin) in §601.

Religion clauses

In 1992, Rehnquist joined Lee v. Weisman's dissenting opinion that the Free Exercise Clause of the First Amendment to the Constitution only forbids government from preferring one particular religion over another.[83] Justice Souter wrote a dissent specifically addressed to Rehnquist on this issue in 1992.[83]

Rehnquist also led the way in allowing greater state assistance to religious schools, writing for another 5-to-4 majority in Zelman v. Simmons-Harris. In Zelman, the Court approved a school voucher program that aided church schools along with other private schools.

Our cases, Janus like, point in two directions in applying the Establishment Clause. One face looks toward the strong role played by religion and religious traditions throughout our Nation's history.... The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom.

This decision was joined by Justices Scalia, Thomas, Breyer, and Kennedy.

First Amendment

University of Chicago Law School Professor Geoffrey Stone explains that Rehnquist was by an impressive margin the member of the Supreme Court least likely to invalidate a law as violating "the freedom of speech, or of the press".[84]Justice Burger, who was chief justice when Rehnquist started as an associate justice, was 1.8 times more likely to vote in favor of the First Amendment; Scalia, 1.6 times; Thomas, 1.5 times.[84] Excluding unanimous Court decisions, Rehnquist voted to reject First Amendment claims 92% of the time.[84] In issues involving freedom of the press, Rehnquist rejected First Amendment claims 100% of the time.[84] Stone says:

There were only three areas in which Rehnquist showed any interest in enforcing the constitutional guarantee of free expression: in cases involving advertising, religious expression, and campaign finance regulation.[84]

Fourteenth Amendment

Rehnquist wrote a concurrence agreeing to strike down the male-only admissions policy of the Virginia Military Institute, as violative of the Fourteenth Amendment's Equal Protection Clause.[85][86] However, he declined to join the majority opinion's basis for using the Fourteenth Amendment, writing:

Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation.[86]

This rationale supported facilities separated on the basis of gender:

It is not the 'exclusion of women' that violates the Equal Protection Clause, but the maintenance of an all-men school without providing any—much less a comparable—institution for women.... It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall caliber.[86]

Rehnquist remained skeptical about the Court's Equal Protection Clause jurisprudence; some of his opinions most favorable to equality resulted from statutory rather than constitutional interpretation. For example, in Meritor Savings Bank v. Vinson (1986), Rehnquist established a hostile-environment sexual harassment cause of action under Title VII of the Civil Rights Act of 1964, including protection against psychological aspects of harassment in the workplace.

Legacy

Jeffery Rosen has argued that William Rehnquist's "tactical flexibility was more effective than the rigid purity of Scalia and Thomas."[87] Rosen says:

In truth, Rehnquist carefully staked out a limbo between the right and the left and showed that it was a very good place to be. With exceptional efficiency and amiability he led a Court that put the brakes on some of the excesses of the Earl Warren era while keeping pace with the sentiments of a majority of the country—generally siding with economic conservatives and against cultural conservatives. As for judicial temperament, he was far more devoted to preserving tradition and majority rule than the generation of fire-breathing conservatives who followed him. And his administration of the Court was brilliantly if quietly effective, making him one of the most impressive chief justices of the past hundred years.

Professor Charles Fried has described the Rehnquist Court's "project" as being "to reverse not the course of history but the course of constitutional doctrine's abdication to politics".[88] Legal reporter Jan Greenburg has said that conservative critics noted that the Rehnquist court did little to overturn the left's successes in the lower courts, and in many cases actively furthered them.[89]

However, in 2005 law professor John Yoo wrote: "It is telling to see how many of Rehnquist's views, considered outside the mainstream at the time by professors and commentators, the court has now adopted."[90]

Personal health

After Rehnquist's death in 2005, the FBI honored a Freedom of Information Act request detailing the Bureau's background investigation prior to Rehnquist's nomination as chief justice. The files reveal that for a period, Rehnquist had been addicted to Placidyl, a drug widely prescribed for insomnia. Placidyl can be addictive, and it was not until he was hospitalized that doctors learned of the depth of his dependency.

Rehnquist was prescribed Placidyl by Dr. Freeman Cary, a physician at the U.S. Capitol, for insomnia and back pain from 1972 through 1981 in doses exceeding the recommended limits. The FBI report concluded, however, that Rehnquist was already taking the drug as early as 1970.[91] By the time he sought treatment, Rehnquist was taking three times the prescribed dose of the drug nightly.[92] On December 27, 1981, Rehnquist entered George Washington University Hospital for treatment of back pain and dependency on Placidyl. There, he underwent a month-long detoxification process.[92] While hospitalized, he had typical withdrawal symptoms, including hallucinations and paranoia. For example, "One doctor said Rehnquist thought he heard voices outside his hospital room plotting against him and had 'bizarre ideas and outrageous thoughts', including imagining 'a CIA plot against him' and seeming to see the design patterns on the hospital curtains change configuration."[93]

For several weeks prior to hospitalization, Rehnquist had slurred his words, but there were no indications he was otherwise impaired.[91][94] Law professor Michael Dorf has observed that "none of the Justices, law clerks or others who served with Rehnquist have so much as hinted that his Placidyl addiction affected his work, beyond its impact on his speech."[95]

Declining health and death

An ailing Chief Justice Rehnquist administers the presidential oath of office to President George W. Bush at his inauguration in 2005, as First Lady Laura Bush looks on. Note: Rehnquist's addition of the gold stripes on his robes

On October 26, 2004, the Supreme Court press office announced that Rehnquist had recently been diagnosed with anaplastic thyroid cancer. In the summer of 2004, Rehnquist traveled to England to teach a constitutional law class at Tulane University Law School's program abroad. After several months out of the public eye, Rehnquist administered the oath of office to President George W. Bush at his second inauguration on January 20, 2005, despite doubts over whether his health would permit his participation. He arrived using a cane, walked very slowly, and left immediately after the oath itself was administered.[96]

After missing 44 oral arguments before the Court in late 2004 and early 2005, Rehnquist appeared on the bench again on March 21, 2005.[97] During his absence, however, he remained involved in the business of the Court, participating in many of the decisions and deliberations.[98]

On July 1, 2005, Rehnquist's colleague Sandra Day O'Connor announced her impending retirement from her position of associate justice, after consulting with Rehnquist and learning that he intended to remain on the Court. Commenting on the frenzy of speculation over his retirement, Rehnquist joked with a reporter who asked if he would be retiring, "That's for me to know and you to find out."[99]

Rehnquist died at his Arlington, Virginia, home on September 3, 2005, just four weeks before his 81st birthday. Rehnquist was the first member of the Supreme Court to die in office since Justice Robert H. Jackson in 1954 and the first chief justice to die in office since Fred M. Vinson in 1953.

Replacement as chief justice

Rehnquist's death, just over two months after O'Connor announced her impending retirement, left two vacancies to be filled by President George W. Bush. On September 5, 2005, Bush withdrew the nomination of Judge John Roberts of the D.C. Circuit Court of Appeals to replace O'Connor as associate justice, and instead nominated him to replace Rehnquist as chief justice. Roberts was confirmed by the U.S. Senate and sworn in as the new chief justice on September 29, 2005. Roberts had clerked for Rehnquist in 1980–1981.[105] O'Connor, who had made the effective date of her resignation the confirmation of her successor, continued to serve on the Supreme Court until the confirmation and swearing in of Samuel Alito in January 2006.

Eulogizing his predecessor in the Harvard Law Review, Roberts wrote that Rehnquist was "direct, straightforward, utterly without pretense—and a patriot who loved and served his country. He was completely unaffected in manner."[106]

Family life

Rehnquist's paternal grandparents immigrated separately from Sweden in 1880. His grandfather Olof Andersson, who changed his surname from the patronymic Andersson to the family name Rehnquist, was born in the province of Värmland; his grandmother was born Adolfina Ternberg in Vreta Kloster (parish) in Östergötland. Rehnquist is one of two chief justices of Swedish descent, the other being Earl Warren, who had Norwegian and Swedish ancestry.[107]

Rehnquist married Natalie "Nan" Cornell on August 29, 1953. The daughter of a successful San Diego physician, she worked as an analyst on the CIA's Austria desk before their marriage.[108] The couple had three children: James, a lawyer and former college basketball star, Janet, a lawyer, and Nancy, an editor (including of her father's books) and homemaker.[109][110] Nan Rehnquist died on October 17, 1991, aged 62, from ovarian cancer.[111] She was also survived by nine grandchildren,[112] one of whom, Natalie Lynch, delivered a eulogy at Rehnquist's funeral.[113]

Shortly after moving to Washington, D.C., the Rehnquists purchased a home in Greensboro, Vermont, a rural community where they spent many vacations.[114]

Rehnquist, William H. (1987). The Supreme Court: How It Was, How It Is. New York: William Morrow & Co. ISBN0-688-05714-4.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

Revised edition: Rehnquist, William H. (2001). The Supreme Court: A new edition of the Chief Justice's classic history. New York: Knopf Publishing Group. ISBN0-375-40943-2.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

References

↑"Members of the Supreme Court of the United States". Supreme Court of the United States. Retrieved April 11, 2010. The date a Member of the Court took his/her Judicial oath (the Judiciary Act provided "That the Justices of the Supreme Court, and the district judges, before they proceed to execute the duties of their respective offices, shall take the following oath . . . ") is here used as the date of the beginning of his/her service, for until that oath is taken he/she is not vested with the prerogatives of the office.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

↑William Rehnquist, "A Random Thought on the Segregation Cases" at the Wayback Machine (archived September 21, 2008), S. Hrg. 99-1067, Hearings Before the Senate Committee on the Judiciary on the Nomination of Justice William Hubbs Rehnquist to be Chief Justice of the United States (July 29–31, and August 1, 1986).

↑Justice William O. Douglas wrote: "In the original conference there were only four who voted that segregation in the public schools was unconstitutional. Those four were Black, Burton, Minton, and myself." See Bernard Schwartz, Decision: How the Supreme Court Decides Cases, page 96 (Oxford 1996). Likewise, Justice Felix Frankfurter wrote: "I have no doubt that if the segregation cases had reached decision last term, there would have been four dissenters—Vinson, Reed, Jackson, and Clark." Ibid.

thought Plessy had been wrongly decided at the time, that it was not a good interpretation of the equal protection clause to say that when you segregate people by race, there is no denial of equal protection. But Plessy had been on the books for 60 years. Congress had never acted, and the same Congress that had promulgated the 14th Amendment had required segregation in the District schools. I saw factors on both sides. I did not agree then, and I certainly do not agree now, with the statement that "Plessy against Ferguson is right and should be reaffirmed." I had ideas on both sides, and I do not think I ever really finally settled in my own mind on that. Around the lunch table I am sure I defended it. I thought there were good arguments to be made in support of it.

S. Hrg. 99–1067, Hearings Before the Senate Committee on the Judiciary on the Nomination of Justice William Hubbs Rehnquist to be Chief Justice of the United States (July 29, 30, 31, and August 1, 1986).

↑Lua error in Module:Citation/CS1/Identifiers at line 47: attempt to index field 'wikibase' (a nil value).

↑ 23.023.1Rosen, Jeffery (April 2005). "Rehnquist the Great?". Atlantic Monthly.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles> ("Rehnquist ultimately embraced the Warren Court's Brown decision, and after he joined the Court he made no attempt to dismantle the civil-rights revolution, as political opponents feared he would").

Mr. Rehnquist has said he was unaware of discriminatory restrictions on properties he bought in Arizona and Vermont, and officials in those states said today that he had never even been required to sign the deeds that contained the restrictions.... He told the committee he would act quickly to get rid of the covenants. The restriction on the Vermont property prohibits the lease or sale of the property to "members of the Hebrew race" ... The discriminatory language appears on the first page of the single-spaced document in the middle of a long paragraph filled with unrelated language regarding sewers and the construction of a mailbox.

Further reading

Abraham, Henry J. (1992). Justices and Presidents: A Political History of Appointments to the Supreme Court (3rd ed.). New York: Oxford University Press. ISBN0-19-506557-3.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

Frank, John P. (1995). Friedman, Leon; Israel, Fred L., eds. The Justices of the United States Supreme Court: Their Lives and Major Opinions. Chelsea House Publishers. ISBN0-7910-1377-4.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

Hall, Kermit L., ed. (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. ISBN0-19-505835-6.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>